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ELRCPartially AllowedMemorandum of Appeal filed 20 February 2024 (number not stated in judgment)

Sinohydro Corporation Ltd v Oduor (Appeal E005 of 2024) [2024] KEELRC 1377 (KLR)

Employment and Labour Relations Court
12 June 2024
1,250 words in judgment
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The bottom line

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A Kenyan court threw out a Kshs 1.5 million award against an employer because the employee failed to prove his dismissal was unfair.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Kisumu against the judgment of a Principal Magistrate who found that Stephen Otieno Oduor's employment by Sinohydro Corporation Ltd had been unfairly terminated and awarded him Kshs 1,500,000/- as damages for harassment. Sinohydro appealed on multiple grounds, contending among others that the trial magistrate framed issues unsupported by pleadings, erred in treating the matter as unfair termination under section 41 of the Employment Act, awarded damages alien to section 49 of the Act, and failed to address the Appellant's plea of desertion. Radido Stephen J adopted the settled first-appeal duty of re-evaluating the evidence. The court held that under section 47(5) of the Employment Act, 2007 the employee bears the burden of proving unfair termination, and the Respondent failed to discharge it: he never named his alleged supervisor in his pleadings or witness statement, and the termination notice he produced was not on the Appellant's letterhead and was unsigned by any manager or supervisor, rendering it of doubtful origin. The harassment award also collapsed, as there was no evidence supporting a finding of harassment and the Respondent did not disclose or call the colleague he was allegedly pressed to implicate. The appeal was allowed, the Principal Magistrate's judgment was set aside and substituted with an order dismissing the Cause, with costs of the appeal and the subordinate court to the Appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent discharged the burden under section 47(5) of the Employment Act, 2007 of proving unfair termination of employment
  2. 2.Whether the Respondent proved unfair labour practices/harassment in the workplace justifying the award of Kshs 1,500,000/-
  3. 3.Whether the Principal Magistrate's judgment should stand on a first appeal

Key legal issues

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01

Unfair termination of employment

Holding

The finding of unfair termination was set aside; the Respondent did not discharge the burden under section 47(5) and the termination notice was of doubtful origin

Reasoning

The Respondent pleaded that a supervisor informed him of summary dismissal but did not name the supervisor in the Statement of Claim or witness statement, naming him only during oral testimony. The alleged termination notice was not on the Appellant's letterhead and bore no signature of any manager or supervisor. The court held the trial magistrate erred in faulting the Appellant for not calling an unnamed supervisor.

p. 3
02

Harassment/unfair labour practices

Holding

The award of Kshs 1,500,000/- for harassment was overturned as unsupported by evidence

Reasoning

The only supervisor named, Charles, was said by the Respondent himself not to be his supervisor at the fuel station and he had no disagreement with him. The Respondent did not disclose or call the colleague he was allegedly being pressured to implicate. The court found no evidence on record capable of supporting a finding of harassment.

p. 3

Legal principles established

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  • On a first appeal, the court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the trial court's conclusions should stand, giving reasons either way
  • Under section 47(5) of the Employment Act, 2007, it is the employee who bears the burden of demonstrating that an unfair termination occurred before the employer is called upon to justify the dismissal
  • An employee alleging unfair termination must plead and prove the particulars of the person who allegedly effected the dismissal to enable the employer to defend itself

Court orders

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  1. 1.The judgment of the Principal Magistrate is set aside and vacated and substituted with judgment dismissing the Cause
  2. 2.The Appellant to have costs of the Appeal and before the Subordinate Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrates Court
not stated in judgment
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Principal Magistrates Court (statutory basis not expressly cited in judgment)

Relief refused

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Respondent's award for unfair termination and harassment damages

The Respondent failed to discharge the statutory burden of proof; the termination notice was of doubtful origin and there was no evidence of harassment

p. 3

Costs

The Appellant to have costs of the Appeal and before the Subordinate Court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the Court finds merit in the Appeal and the judgment of the Principal Magistrate is set aside and vacated and substituted with judgment dismissing the Cause
p. 4Disposition - appeal allowed
The Appellant to have costs of the Appeal and before the Subordinate Court
p. 4Costs order
it is the employee who must discharge the burden of demonstrating that an unfair termination of employment occurred before the employer is called upon to justify the validity and fairness of the dismissal
p. 3Burden of proof under section 47(5) Employment Act
the termination notice was of doubtful origin and therefore not impactful as evidence
p. 3Evidentiary weight of unsigned termination notice

Issues in the judgment

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minor

The judgment does not state the case number of the appeal or of the subordinate court cause, and does not identify the Principal Magistrate or the date of the decision appealed from

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sinohydro Corporation Ltd v Oduor (Appeal E005 of 2024) [2024] KEELRC 1377 (KLR)", Case Analysis (2024). Memorandum of Appeal filed 20 February 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1377/eng@2024-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.